The Briefs on the Merits - Bna

Ch. 13.11(k)(1) <strong>The</strong> <strong>Briefs</strong> on the Merits 727
orders to show cause why they should not be disbarred. See In the Matter of
Teddy I. Moore, 529 U.S. 1063 (2000).
(k) Facts Outside the Record—General Rule
That parties and courts, including appellate courts, are limited to reliance
upon facts in the record is an accepted principle that, like most principles,
is generally but not invariably true. <strong>The</strong> entire system of determining
disputes by trial before a court rests on the assumption that decisions must be
based on the evidence submitted to (and held admissible by) the court and
nothing else. In the normal situation, attempts to rely on nonrecord facts in
appellate courts are “unprofessional conduct.” 41
On occasion counsel have sought to influence the Court’s decision in a
case by attaching to a brief or to a petition for rehearing some additional or
different evidence that is not part of the certified record, such as an affidavit
or an unsworn statement. <strong>The</strong> Court has consistently condemned such efforts,
as well as any arguments based thereon in the brief or petition. Russell v.
Southard, 12 How. 139, 158–59 (1851) (“This court must affirm or reverse
upon the case as it appears in the record”); Hopt v. Utah, 114 U.S. 488, 491–
92 (1885) (“<strong>The</strong> lawfulness of the conviction and sentence of the defendant
is to be determined by the formal record * * * and not by ex parte affidavits”);
Adickes v. Kress & Co., 398 U.S. 144, 157–58 n.16 (1970) (“Manifestly, it [an
unsworn statement of a witness] cannot be properly considered by us in the
disposition of the case”). While the Supreme Court has yet to do more than
condemn and then ignore such attempts, counsel should be aware of the serious
risks involved and avoid possibly prejudicing his or her case. 42 <strong>The</strong> Court
has, however, (though rarely) itself requested the disclosure of nonrecord facts
that suggested the unconstitutionality of a defendant’s criminal conviction,
in the hope of enabling a state court “to take action which might dispose of
the case” without deciding constitutional questions. Giles v. Maryland, 386
U.S. 66, 74, 80 (1967).
(1) Facts Subject to Judicial Notice. Facts that are subject to judicial notice
constitute a well-recognized exception to the general rule. <strong>The</strong> taking of
judicial notice of a fact outside the record is part of the inherent power and
function of every court, whether a trial or appellate tribunal. 43 Judicial notice
does not play a large part in most litigation, and thus does not to any significant
extent undermine the general principle as to staying within the record.
<strong>The</strong> definition in the Federal Rules of Evidence (Rule 201(b)), which in
substance states the preexisting general law, is that:
41AMERICAN BAR ASSOCIATION STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL
JUSTICE, Prosecutor Function Standard 3–5.9; Defense Function Standard 4–7.9 (2d ed. 1979).
42In the event that counsel believes that nonrecord facts may properly be brought to the Court’s
attention, a motion to enlarge the record may be filed. Kyles v. Whitley, 513 U.S. 958 (1994) (granting
motion to enlarge the record); Campbell v. Louisiana, 522 U.S. 1013 (1997) (same).
43 ABA STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL JUSTICE, COMPILATION 98,
135–36 (1974).